HB 1143 – AS AMENDED BY THE HOUSE
13Mar2014… 0471h
2014 SESSION
05/01
HOUSE BILL 1143
AN ACT relative to the New Hampshire Law Against Discrimination.
SPONSORS: Rep. L. Ober, Hills 37; Rep. Umberger, Carr 2; Rep. Rosenwald, Hills 30; Sen. Carson, Dist 14; Sen. Reagan, Dist 17; Sen. Stiles, Dist 24
This bill amends RSA 354-A, the state Law Against Discrimination to conform to the Fair Housing Act, 42 U.S.C. section 3601, et seq., as amended.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
13Mar2014… 0471h
14-2296
05/01
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fourteen
AN ACT relative to the New Hampshire Law Against Discrimination.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Change “Creed” or “Religious Creed” to “Religion.” Amend the following RSA provisions by replacing “creed” or “religious creed” with “religion”: RSA 354-A:1; 354-A:5, VIII and IX; 354-A:6; 354-A:7, III; 354-A:8; 354-A:10,VIII; 354-A:16; 354-A:17; and 354-A:25.
2 Definition of Multiple Dwelling. Amend RSA 354-A:2, XI to read as follows:
XI. “Multiple dwelling” means [2] 4 or more dwellings, as defined in paragraph V, occupied by families living independently of each other.
3 Definition of Person. Amend RSA 354-A:2, XIII to read as follows:
XIII. “Person” includes one or more individuals, partnerships, associations, corporations, unincorporated organizations, legal representatives, mutual companies, joint-stock companies, labor organizations, trusts, trustees, fiduciaries, trustees in bankruptcy, receivers, and the state and all political subdivisions, boards, and commissions thereof.
4 Definition of Reasonable Accommodation. Amend RSA 354-A:2, XIV-b to read as follows:
XIV-b. “Reasonable accommodation” may include, but not be limited to:
(a) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities.
(b) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
(c) Making the use and equal enjoyment of dwellings, facilities, and services associated with housing accessible to and usable by individuals with disabilities by modifying rules, policies, practices, or services in housing.
(d) Making the use and equal enjoyment of public accommodations, as defined in paragraph XIV, accessible to and usable by individuals with disabilities by modifying policies, practices, or services to provide such access.
5 Power to Initiate Complaints. Amend RSA 354-A:5, VI to read as follows:
VI. To initiate, receive, investigate, and pass upon complaints alleging violations of this chapter.
6 Unlawful Discriminatory Practices. Amend the introductory paragraph of RSA 354-A:10 to read as follows:
354-A:10 Unlawful Discriminatory Practices. It shall be an unlawful discriminatory practice for any person[, being the owner, lessee, sublessee, assignee, managing agent or other person having the right to rent or lease a dwelling or commercial structure or being in the business of selling or renting dwellings or commercial structures]:
7 Fair Housing Exemptions. Amend RSA 354-A:13, I(b) and (c) to read as follows:
(b) To the rental of [a housing accommodation] living quarters in a building which contains [housing accommodations] living quarters for not more than 3 families living independently of each other, if the owner [or members of his family reside in one of such housing accommodations] resides in one of the living quarters; or
(c) To the rental of a room or rooms in a [housing accommodation] dwelling with not more than 5 such rooms, if [such rental is by the occupant of the housing accommodation or by the owner of the housing accommodation and the owner or members of the owner’s family reside in such housing accommodation] one room is occupied by the owner of the dwelling.
8 Fair Housing; Exemptions; Reference Change. Amend RSA 354-A:13, II and III to read as follows:
II. Nothing in this [chapter] subdivision shall prohibit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association, or society, from limiting the sale, rental or occupancy of dwellings which it owns or operates for other than a commercial purpose to persons of the same religion, or from giving preference to such persons, unless membership in such religion is restricted on account of race, color, or national origin.
III. Nothing in this [chapter] subdivision shall prohibit a private club not in fact open to the public, which as an incident to its primary purpose or purposes provides lodging which it owns or operates for other than a commercial purpose, from limiting the rental or occupancy of such lodgings to its members or from giving preference to its members.
9 Housing for Older Persons. Amend RSA 354-A:15, IV-VI to read as follows:
IV. [In determining whether housing qualifies as] Housing for persons 55 years or older[, the commission shall adopt rules which require at least the following factors] shall meet the following criteria:
(a) The existence of significant facilities and services specifically designed to meet the physical or social needs of older persons, or if the provision of such facilities and service is not practicable, that such housing is necessary to provide important housing opportunities for older persons;
(b) [That] At least 80 percent of the units are occupied by at least one person 55 years of age or older per unit; and
(c) The publication of, and adherence to, policies and procedures which demonstrate an intent by the owner or manager to provide housing for persons 55 years of age or older.
V. Housing shall not fail to meet the requirements for housing for older persons by reason of:
(a) Persons residing in such housing as of September 13, 1988, who do not meet the age requirements of [paragraphs] RSA 354-A:15, II or III, provided, that new occupants of such housing meet the age requirements of [paragraph] RSA 354-A:15, II or III.
(b) Unoccupied units, provided, that such units are reserved for occupancy by persons who meet the age requirements of [paragraph] RSA 354-A:15, II or III.
VI. Any rule concerning the exemption available under this section shall be consistent with federal law. In adopting such rules, the commission shall be guided by applicable federal regulations and interpretations concerning housing for older persons [under 42 U.S.C. section 3607(b)].
10 Public Accommodations; Exemption for Religious Organizations. Amend the subdivision heading preceding RSA 354-A:18 and RSA 354-A:18 to read as follows:
[Exemption]
354-A:18 Exemption for Religious Organizations. Nothing contained in this [chapter] subdivision shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, from limiting admission to or giving preference to persons of the same religion or denomination or from making such selection as is calculated by such organization to promote the religious principles for which it is established or maintained.
11 Retaliation and Required Records; Gender Neutral Reference Added. Amend RSA 354-A:19 to read as follows:
354-A:19 Retaliation and Required Records. It shall be an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to discharge, expel, or otherwise retaliate or discriminate against any person because he or she has opposed any practices forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under this chapter.
12 Procedure on Complaints. RSA 354-A:21 is repealed and reenacted to read as follows:
354-A:21 Procedure on Complaints.
I.(a) Any person claiming to be aggrieved by an unlawful discriminatory practice may make, sign, and file with the commission a verified complaint in writing which shall state the name and address of the respondent alleged to have committed the unlawful discriminatory practice complained of and which shall set forth the particulars thereof and contain such other information as may be required by the commission. Any person claiming to be aggrieved by unlawful housing discrimination is exempt from verifying the complaint. The attorney general or one of the commissioners may, in like manner, make, sign, and file such complaint.
(b) In connection with the filing of such complaint, the commission is authorized to receive, investigate, take proof, issue subpoenas, administer oaths, and decide upon complaints of employment, housing, and public accommodation discrimination. The attorney general is authorized to take proof, issue subpoenas, and administer oaths in the manner provided in the civil practice law and rules.
II. Housing Discrimination Procedure on Complaints.
(a) In complaints filed based on housing discrimination, the commission shall send the aggrieved party notice acknowledging receipt of the complaint together with a notice of choice of forums. The commission shall serve notice of filing of the complaint to the respondent, including a copy of the complaint and notice of procedural rights and duties. Proceedings at the commission shall begin within 30 days of receipt of the complaint. In addition, investigation of the housing discrimination complaint and a determination of reasonable cause shall be completed within 100 days after the filing of the complaint. If the commission is unable to complete the investigation and/or make a determination of cause within 100 days, the commission shall notify the parties in writing of the reason. If the investigating commissioner determines that reasonable cause exists that a discriminatory housing practice has occurred or is about to occur, the investigating commissioner shall immediately issue a charge on behalf of the aggrieved party. If the investigating commissioner determines that no reasonable cause exists, the complaint may be dismissed subject to appeal in the superior court pursuant to subparagraph III(c). Each dismissal shall be subject to public disclosure. No charge may be issued if a trial of a civil action has begun. A final administrative disposition of a housing discrimination complaint shall be made within one year of the date of filing unless it is impractical to do so. If the commission cannot make a final disposition within one year, it shall notify the parties in writing of the reason.
(b)(1) Any party alleging to be aggrieved by housing discrimination, upon issuance of a charge by the investigating commissioner, may elect to have the claims asserted in a civil action in the county in which the violation is alleged to have occurred in lieu of a public administrative hearing before the commission. The election shall be made not later than 20 days after receipt of service of the charge. The person making such election shall give notice to the commission and all other complainants and respondents to whom the charge relates.
(2) If a civil action is not elected, the commission shall issue written notice, requiring the respondent to attend a public hearing before 3 members of the commission designated by the chair, none of whom were the investigating commissioner. The hearing shall be scheduled not later than 120 days after the charge issues. The location of the hearing shall be in the county in which the discriminatory practice is alleged to have occurred or is about to occur. All parties shall have a right to obtain issuance of subpoenas, appear in person, be represented by counsel, present evidence, cross-examine witnesses, and create a record. If the aggrieved party cannot obtain legal counsel for a public hearing before the commission, the commission shall provide legal counsel for him or her subject to the rules of the state of New Hampshire for appointment of counsel. If the commission cannot schedule a public hearing within 120 days after the charge issues, written notice to the parties explaining why it is impractical to do so shall be provided. The case in support of the charge may be presented before the commissioners by the aggrieved party or his or her representative. The investigating commissioner who issued the charge shall not participate in the hearing or deliberation of the decision. The respondent shall appear in person with or without a representative. The commission or the complainant shall have the power reasonably and fairly to amend any complaint, and the respondent shall have like power to amend his or her answer. The commissioners shall not be bound by the strict rules of evidence prevalent in courts of law or equity. Testimony taken shall be under oath and transcribed at the request of any party. The cost of transcription shall be borne by the party requesting the transcript unless the party is indigent, in which case the commission shall pay the cost upon request for a waiver and proof of indigency.
(3) If the commission finds in favor of the aggrieved party, it may order appropriate relief, including actual damages suffered by the aggrieved person, injunctive and other equitable relief, and reasonable attorney fees. If counsel for the aggrieved party was appointed in accordance with the rules of the state of New Hampshire for the appointment of counsel, any award of attorney fees shall be deposited to the general fund. The civil penalties set forth in the federal Fair Housing Act, as amended in 1988, 42 U.S.C. section 3601, et seq., and any future amendments to the act shall apply to housing discrimination public hearings except that if the acts of housing discrimination that are the object of the charge are committed by the same natural person who has been previously adjudged to have committed acts constituting a discriminatory housing practice, then the civil penalties may be imposed without regard to the period of time within which any discriminatory housing practice occurred.
(4) The commission hearing panel shall issue written findings of fact and rulings of law to the parties within 60 days of the end of the hearing. If the commission is unable to issue findings and rulings within 60 days, written notice to the parties explaining why it is impractical to issue the decision shall be provided.
(c) The commission may bring a civil action in the name of the commission to enforce the New Hampshire fair housing act if the facts as alleged also violate the Fair Housing Act, 42 U.S.C. section 3601, et seq. If the commission determines it will bring a civil action, the parties shall be so notified. If the commission determines not to file a civil action, it shall close the case and inform the parties of the complainant’s rights in the matter.
(d) In complaints filed based on housing discrimination, from the time a complaint is filed, and ending with a filing of a charge or a dismissal, the commission shall engage in conciliation of the complaint with the parties. Any conciliation agreement reached shall be between respondent and complainant and will be approved by the commission. Such agreements shall be made public unless the complainant and respondent agree otherwise and the commission determines that disclosure of the agreement is not required to further the overall statutory purpose.
III. Employment and Public Accommodations Procedure on Complaints.
(a) After the filing of any employment or public accommodations complaint, the respondent shall be promptly served with a copy of the complaint and a date by which to file a response and any other information required for investigative purposes. A copy of the notice of service of the complaint shall be provided to the complainant. The commission shall make prompt investigation in connection with the filing of a complaint.
(b) In complaints filed based on employment discrimination and public accommodations discrimination, from the time a complaint is filed and ending with a dismissal, the commission shall assist and provide the parties opportunities to voluntarily resolve the complaint. If an investigating commissioner determines that probable cause exists for crediting the allegations of an employment discrimination or public accommodations discrimination complaint, the commissioner, or his or her designee, shall immediately endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation, and persuasion. Any conciliation agreement reached with the assistance of the commissioner shall be between the respondent and complainant, with the commission signing on as a party. Such agreements shall be made public unless the complainant and respondent agree otherwise and the commission determines that disclosure of the agreement is not required to further the overall statutory purpose.
(c) If the investigating commissioner finds no probable cause to credit the allegations in the complaint, the complaint shall be dismissed, subject to a right of appeal to superior court within 30 days of the date of notice of dismissal. To prevail on appeal in superior court, the moving party shall establish that the commission’s decision is unlawful or unreasonable by a clear preponderance of the evidence. The findings of the investigating commissioner upon questions of fact shall be upheld as long as the record contains credible evidence to support them. If the court reverses the probable cause finding of the investigating commissioner, the court shall remand the case for further proceedings in accordance with this section, unless the complainant or respondent elects to proceed with a hearing in superior court pursuant to RSA 354-A:21-a.
(d)(1) In case of failure to eliminate an unlawful discriminatory practice complained of, or in advance thereof, if, in the judgment of the commissioner making the investigation, circumstances so warrant, the commissioner shall cause to be issued and served in the name of the commission, a written notice, together with a copy of such complaint as the same may have been amended, requiring the respondent named in such complaint to answer at a hearing before 3 members of the commission, designated by the chair and sitting as the commission, at a time and place to be fixed by the chair and specified in such notice. The place of any such hearing shall be the office of the commission or such other place as may be designated by the commission.
(2) The case in support of the complainant may be presented before the commission by the complainant or complainant’s representative. The commissioner who shall have previously made the investigation and caused the notice to be issued shall not participate in the hearing except as a witness, nor shall he or she participate in the subsequent deliberation of the commission in such case. Any prior endeavors at conciliation shall not be received in evidence. The respondent shall appear at the hearing in person or by representative, with or without counsel, and submit evidence. The commission, the complainant, or the complainant’s representative shall have the power reasonably and fairly to amend any complaint, and the respondent shall have like power to amend its answer. The commission shall not be bound by the strict rules of evidence prevailing in courts of law or equity when conducting public hearings. The testimony taken at the hearing shall be under oath and transcribed at the request of any party. The cost of transcription shall be borne by the party requesting the transcript unless the party is indigent, in which case the commission shall pay the cost upon that party’s request for a waiver and proof of indigency.
(3) If, upon all the evidence at the hearing, the commission finds by a preponderance of evidence that the respondent has engaged in an unlawful discriminatory practice under RSA 354-A:7 or RSA 354-A:17, the commission shall make findings of fact and rulings of law in writing to the parties which shall grant such relief as the commission panel deems just and equitable, including but not limited to: requiring such respondent to cease and desist from such unlawful discriminatory practice and to take such affirmative action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay, restoration to membership in any respondent labor organization, or the extension of full, equal and unsegregated accommodations, advantages, facilities and privileges to all persons, as in the judgment of the commission, will effectuate the purpose of this chapter and including a requirement for report of the manner of compliance. Such cease and desist orders for affirmative relief may be issued to operate prospectively. The commission may also order compensatory damages to be paid to the complainant by the respondent, shall order reasonable attorney fees to the complainant, and in order to vindicate the public interest, order the respondent to pay an administrative fine. The administrative fine shall be deposited in the general fund. The amount of the administrative fine shall not exceed:
(A) Ten thousand dollars if the respondent has not been adjudged to have committed any prior discriminatory practice in any administrative hearing or civil action.
(B) Fifty thousand dollars if the respondent has been adjudged to have committed a prior discriminatory practice in any administrative hearing or civil action and the adjudication was made no more than 5 years prior to the date of filing the current charge.
(C) Seventy five thousand dollars if the respondent has been adjudged to have committed 2 or more discriminatory practices in any administrative hearings or civil action and the adjudications were made during the 7-year period preceding the date of filing of the charge.
(e) In employment discrimination based public hearings, when issuing an order awarding back pay, the commission shall calculate the back pay award by determining the amount the complainant would have earned but for the unlawful discriminatory practice. The commission shall subtract from that amount any unemployment compensation or interim earnings received by the complainant for the time period covered by the back pay award.
(f) If upon all the evidence the commission finds that a respondent has not engaged in any unlawful discriminatory practice, the commission shall make findings of fact and rulings of law in writing to the parties dismissing the complaint. All public hearing decisions of the commission shall be made public. A copy of the commission’s public hearing decision shall be delivered in all cases to the attorney general, and such other public officers as the commission deems relevant or proper. The commission shall establish rules of practice to govern, expedite, and effectuate the foregoing procedure and its own actions.
(g) Any complaint relative to employment or public accommodation discrimination filed pursuant to this paragraph shall be filed within 180 days after the alleged act of discrimination. Any complaint filed pursuant to this paragraph by the attorney general or one of the commissioners shall be so filed within 180 days after the alleged unlawful discriminatory practice.
(h) In administering complaints filed under this paragraph, the commission shall be exempt from the provisions of RSA 541-A:29, II, but shall close each case or commence adjudicative proceedings on such case under this section within 24 months after the filing date of the complaint.
13 Choice of Forum. Amend RSA 354-A:21-a to read as follows:
354-A:21-a Choice of Forum.
I. Any party alleging to be aggrieved by any employment discrimination or public accommodations discrimination practice made unlawful under this chapter may, at the expiration of 180 days after the timely filing of a complaint with the commission, or sooner if the commission assents in writing, but not later than 3 years after the alleged unlawful practice occurred, bring a civil action for damages or injunctive relief or both, in the superior court for the county in which the alleged unlawful practice occurred or in the county of residence of the party. The waiting period described in this paragraph shall not apply to a party aggrieved by housing discrimination.
II. Any party alleged to have committed any practice made unlawful under this chapter may, in any case in which a determination of probable cause has been made by the investigating commissioner, remove said complaint to superior court for trial. A court in cases so removed may award all damages and relief which could have been awarded by the commission, except that in lieu of an administrative fine, enhanced compensatory damages may be awarded when the court finds the respondent’s discriminatory conduct to have been taken with willful or reckless disregard of the charging party’s rights under this chapter. A superior court trial shall not be available to any party if a hearing before the commission has begun or has concluded pursuant to RSA 354-A:21, II(b) or RSA 354-A:21, III(d), or to a complainant whose charge has been dismissed as lacking in probable cause who has not prevailed on an appeal to superior court pursuant to RSA 354-A:21, [II(a)] III(c). In superior court, either party is entitled to a trial by jury on any issue of fact in an action for damages regardless of whether the complaining party seeks affirmative relief.
[II.] III. The [charging party] complainant shall notify the commission of the filing of any superior or federal court action, and the respondent shall notify the commission of the removal to superior court after a finding of probable cause in accordance with commission rules. After such notice, the commission shall dismiss the complaint without prejudice. A party electing to file a civil action with the superior court under [paragraph I] this section, shall be barred from bringing any subsequent complaint before the commission based upon the same alleged unlawful discriminatory practice.
[III. The commission may, after a finding of probable cause, bring suit in superior court at its own expense on behalf of an aggrieved person in housing discrimination cases.]
14 Criminal Penalty. Amend RSA 354-A:24 to read as follows:
354-A:24 Criminal Penalty. Any person[, employer, labor organization or employment agency,] as defined in RSA 354-A:2, XIII, who or which shall willfully resist, prevent, impede or interfere with the commission or any of its members or representatives in the performance of duty under RSA 354-A, or shall willfully violate an order of the commission, shall be guilty of a misdemeanor if [a natural person,] an individual or guilty of a felony if any other person. Procedure for the review of the order shall not be deemed to be such willful conduct.
15 Reference Change. Amend RSA 354-A:3, II to read as follows:
II. Any member chosen to fill a vacancy occurring otherwise than by expiration of term shall be appointed for the unexpired term of the member who is to be succeeded. Four members of the commission shall constitute a quorum for the purpose of conducting the commission’s business, with the exception of hearings conducted pursuant to RSA 354-A:21[, II(b)], III(d). A vacancy in the commission shall not impair the right of the remaining members to exercise all the powers of the commission. Each member of the commission shall be entitled to expenses actually and necessarily incurred by the member in the performance of the member’s duties.
16 Effective Date. This act shall take effect January 1, 2015.